Sunday, 1 September 2013

Narendra Modi & Exclusive Jurisdiction

What would happen if Narendra Modi were arrested in London and put on trial for the post Godhra riots?The BJP win big in 2014 on an anti-British ticket. All the streets and buildings currently named after Gandhi or Nehru get renamed for Savarkar and Dhingra and Bhagat Singh.That's not a good thing. It would confuse the fuck out of elderly people like me who still demand the auto driver take us to Curzon Road and Connaught Place as opposed to Kasturba Gandhi ki Bakri ki Marg, and Rajiv ki gandi chaddi ki Chowk or whatever the fuck such places are now called.

In keeping with its long tradition of being behind the times, Kafila, the favorite forum for jhollawallah circle jerks, has a foolish article by Subash Gatade, quoting the no less foolish N. Jayaram, regarding the possibility of arresting Modi in London for human rights violationGatade writes-It may be recalled that for more than eleven years Modi has been yearning to visit the UK, but because of a consistent opposition put up by the secular forces there exposing his alleged role in the 2002 ‘riots’ and with the British government denying any guarantee for his security the plan could never materialise. In fact, he had to cancel his last planned visit to the UK looking at the massive protests which awaited him there accompanied by the inability shown by the British police to defend him as he was to go on a private visit. (2005)And since the families of two British Muslim citizens who had been killed by the frenzied mobs in Gujarat in 2002 were thinking of filing a case against Modi in a British court then, it was considered risky for him to travel there....In an important write-up, ‘Narendra Modi, British Invitation and Universal Jurisdiction’ (http://www. countercurrents.org / jayaram160813.htm), a leading journalist N Jayaram tells us why ‘for human rights groups, the prospect of Modi’s London visit is not a crisis but an opportunity.’According to him“Should he take up the invitation, they could move courts for his arrest and trial under the principle of Universal Jurisdiction for crimes against humanity.(http://en.wikipedia.org/wiki/Universal_jurisdiction) Although Universal Jurisdiction was not invoked in the 1998 arrest of Chile’s former dictator Augusto Pinochet in London, it put worldwide focus on the principle. Judge Baltasar Garzon in Spain called for his arrest on the ground that some of the thousands of victims of human rights abuses in Chile after the 1973 coup were Spanish citizens. Britain’s Law Lords ruled that Pinochet could not cite diplomatic immunity as certain crimes were too serious for that international arrangement to be invoked. Pinochet spent nearly a year and a half under mostly house arrest.It may be mentioned here that Pinochet had to spend more than one and half years in London effectively under house arrest and his supporters in the western world like Margaret Thatcher – who had supported Pinochet’s coup against the elected government of Salvador Allende and the bloodbath that followed and the then US President George Bush had to lobby hard for his release. He was ‘freed on health grounds’ despite protests from Jurists and medical experts. This incident was ‘one of the greatest episodes in international legal history’ and ‘the words Universal Jurisdiction gained currency beyond the groves of academe.’The author discusses other examples of leading personalities or army commanders who had to cancel their trips abroad for similar fear of litigation. He talks about the cancellation of former US president George W, Bush’s trip to Switzerland (2011) in view of the threat of large scale protests. “Amnesty International had asked the Swiss authorities to investigate his role in torture. Amnesty was told that the authorities had no plans to prosecute Bush. But there have been rumblings in other countries, including Spain and Germany, with threats of investigations against leading US officials for torture and other crimes against humanity.”It was in 2005 that Doron Almog, a former Israeli army commander, had to literally fly back from London without getting down from his aircraft as he was told that some Palestinian groups had moved a court to charge him with crimes against humanity. (http://news.bbc.co.uk/2/hi/uk_news/7251954.stm). Similarly, Tzipi Livni, former foreign minister of Israel, cancelled her proposed trip to Britain (2009) when reports came in that an arrest warrant was out for her role in alleged war crimes in Gaza. The author adds:She was invited back by Foreign Secretary William Hague in 2011 after an amendment that prevents private individuals from seeking such arrests. The Police Reform and Social Responsibility Act 2011 might make it difficult for private individuals to call for Modi’s arrest should he visit Britain. But nothing prevents foreign governments and judges from issuing warrants to be acted upon by the British authorities.Definitely Modi is not the only Indian politician whose visits elsewhere have become subjects of controversy. Jagdish Tytler, a senior Congress leader, who has been under the scanner for his alleged role in the anti-Sikh pogrom of 1984, was similarly dropped from a delegation (2009) which was to visit Britain following protests.The author concludes with this observation:“India has not signed the Rome Statute that established the International Criminal Court in 2002. China, the United States and Israel are among a number of countries that have chosen to stay out. Thus far the ICC, which has 122 members, has only been able to net perpetrators of mass crimes in Africa. The idea that crimes against humanity such as those that occurred in New Delhi in 1984 or Gujarat in 2002 need to be investigated and punished has yet to catch on in India. But it is an idea whose time may yet come.”

My comment on this egregious nonsense will of course not be shown by Kafila's, oh! so democratic, editors but I make it available here out a spirit of genuine sadism towards all Humanity.

Gatade''s article, by reason of its reliance on Jayaram's misleading article, is disingenuous in the following respects

1) A British Muslim did not just think of bringing a case against Narendra Modi under International Law, he actually did help Suresh Grover, Prof. Gautam Appa & Jagdish Patel bring such a case. A British judge dismissed it because it lacked substance- i.e no evidence, as opposed to paranoid lies, was presented to the court despite the sedulous 'research' of Indian ex-Judge H. Suresh. That same British Muslim has returned to India, relinquished his British residency, grown rich and is now a fervent acolyte of Narendra Modi. His name is Zafar Sareshwala and he is prime witness for the defense in Madhu Kishwar's 'Modinama''.

2) Britain changed the law in Sept 2011 such that prosecutions in cases of this sort require the permission of the Director of Public Prosecutions.

3) Suppose an International Arrest Warrant is sought from a Universal Jurisdiction country like Spain. Witnesses will still be required to tell the truth. They will face jail time if they tell stupid, self-serving lies. Their character and criminal record will come under scrutiny. Still, let us suppose for a moment that a foreign court grants an International Warrant for Modi, can a U.K judge enforce it? Remember, Judges in this country aren't stupid. They don't cite Wikipedia in their judgments. Still, they are fearless. So what stands in their way? The answer is Modi, as the current Chief Minister of an Indian State, visiting London in his official capacity and with the complaisance of the Govt., enjoys not just clear functional immunity- because, as the Judge said in the Barak arrest warrant case, “under customary international law, he has immunity from prosecution as he would not be able to perform his functions efficiently if he were the subject of criminal proceedings in this jurisdiction.”- but also, more equivocally, immunity rationae personae. This is because, if the proposed grounds for Modi's indictment comes under the rubric of Command Responsibility, then, clearly, his current position is similar to that of a Head of State or head of Government and thus the action fails. Only if Modi doesn't have Command Responsibility and he is charged with specific acts does the question of jurisdiction arises. By Act of Parliament, Britain recognizes India as a Sovereign Republic with exclusive jurisdiction- this means that whereas a British Court can proceed in the matter, the British Govt. either has to procure a nolle prosequi to stop the proceedings or else risk the ire not just of the Indian Executive but also the Indian Supreme Court. I will return to this point in a moment.Suppose Modi held no official position and was visiting the U.K in a private capacity. The Court may still prima facie conclude he enjoys immunity rationae materiae. One reason militating for this conclusion is the widespread belief in judicial circles in Britain that India is under the rule of Law. Indian Courts have jurisdiction. To enforce an International Arrest Warrant- for example one issued by Pakistan- against an Indian citizen for a crime committed in India would be an affront to the dignity of the Indian bench.

This brings me to the crux of my complaint against Gatade and Jayaram

4) Jayaram believes Indians are horrible and inhumane people. They commit heinous atrocities against cows by stealing their milk and drinking it or putting it in their coffee. Menaka Gandhi has spoken out on this issue. She tells us her son, Varun, has never had dairy products in his life. No wonder that fat fuck is such a lovable guy.

No doubt Jayaram is entirely correct in saying that Indians are heartless monsters who torture animals. But is he also correct in saying that Indians have not yet caught on to the idea that crimes against human beings, not cats or cows, need to be investigated and punished? Let us suppose he is right. In that case India, from the judicial point of view, is a terra nullis. Indian courts do not have jurisdiction over crimes against humanity- e.g. rape and murder- committed on Indian soil because Indians lack the concept that killing or raping people is wrong. That is why such acts are not illegal in India. This means India is not a country under the rule of Law. Can such a country be sovereign? Yes. Sovereignty is a function of power. As a matter of fact, not conjecture, the Indian Supreme Court has asserted its jurisdiction over crimes committed in India or (in the Enrica Lexie case) on board Indian registered ships. Italy sought to defy the Indian Supreme Court. The Supreme Court cancelled the Italian envoy's diplomatic immunity and was preparing further draconian action. Italy made an ignominious volte face.

Suppose a Spanish Court tries to play a monkey-trick on India by claiming jurisdiction over crimes committed on Indian territory. Would the Indian Supreme Court suffer this insult to its puissance? First the diplomatic envoys of Spain would be placed in jeopardy, secondly Spanish assets would be sequestered, third, Spain would face the treat of War. India is not Liberia. It is not a failed State. It is a nuclear power.

Still, suppose Jayaram and Gatade are right. Suppose India is a country of savages. Suppose the Indian Supreme Court is incapable of punishing crimes like rape and murder because Indians still have not caught on to the idea that these are crimes against human beings and therefore crimes against humanity. In that case, even though the Supreme Court can- as a matter of proven fact, not conjecture- prevail over countries like Italy and Spain, even so, from the moral point of view, should we say 'Foreign Courts should fearlessly take jurisdiction over crimes committed in India'?

What are the logical consequences of our making this demand?

1) We admit that Indian courts suffer some infirmity such that they have no effective jurisdiction over certain types of crimes.

2) By admitting (1) we admit that India is not properly under the rule of law

3) Since a key element of sovereignty in a legalistic sense is that of exclusivity of jurisdiction- by admitting (2) we admit that, de jure, India is not fully Sovereign

4) By admitting (3) we have no prima facie way of rejecting territorial claims by other nations against India. This is because we admit that India's Sovereignty is de jure imperfect, even if de facto it is absolute

5) By admitting (4) we class any and all Indian combatants who forcefully resist the invasion of India as no different from terrorists and thus not protected by the Geneva Convention.

6) By admitting (5) all Indian citizens are de jure guilty of financing and supporting Terrorism. India isn't just a failed state, it is a pariah nation which deserves to be wiped off the face of the Earth.

The fuckwits who write for Kafila are, no doubt, very proud and happy to advocate treason. But, they are not doing so on this occasion. They are merely being stupid and illiterate. So don't start popping the Champagne yet. They will have to work a little harder to be sure of getting the Magsaysay Award .

3 comments:

Mention of the ICC Rome Statute is irrelevant. Modi still would not be chargeable because ‘Complemenarity’ is a fundamental principle on which the functioning of the International Criminal Court is based. Under the Rome Statute, which established the Court, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute. Hence the term ‘complemenatarity’, which makes the ICC a Court of last resort. Where a national of, say Sudan, is accused, then the ICC will only have jurisdiction over the crime where there is an unwillingness or incompetence of Sudanese judicial institutions to prosecute. The reason this principle came into existence was the fear on the part of many prospective States party that the ICC would become a supra-national criminal court and would result in countries losing domestic control of criminal prosecutions.'

People calling for Modi's arrest outside of India are guilty of contempt of court and this fact should be brought to the notice of Honble Supreme Ct.

These peculiar times for India is yearning for a strong leader. Many perceive him as a strong leader; the Gujrat 2002 incidents really do not colour anything negative. The louder others complain about 2002, the more his support. He may pull this; and actually it will be good for the country. A peaceful prosperous period may follow.